The Labour, Administration and Public Service Commission of the Chamber of Deputies is currently considering Bill no. 1.429 of 2011 which seeks to amend the CLT (Consolidated Labour Laws) in relation to the monitoring of electronic mail by an employer, with a view to protecting the constitutional guarantee of inviolability of correspondence.
The main point under discussion is the need for the employee to know that the electronic mail is being monitored by the employer, and indeed the creation of a legal requirement to this effect. Another point under consideration is the payment to the employee of a penalty of twice his salary and compensation for moral damage resulting from such monitoring.
Accordingly, in view of the possibility of an amendment to the CLT, the lawmakers would create the need to inform employees, in a clear and unequivocal manner, of the possibility of access to the corporate email.
The corporate email is in principle for exclusively professional use. However, its incorrect or undesirable use may give rise to the imposition of penalties and, depending on the gravity of the act and the misuse of the instrument of work, even dismissal for cause, subject always to the need for proportionality, adequacy and degree of the penalty.
In this scenario, if the employee disobeys the order and uses the corporate email improperly, he may be guilty of an act of insubordination or indiscipline.
By way of example, just cause for dismissal may also occur when the employee's conduct is improper and incompatible with the company's ethical rules, e.g. using an instrument of work for non-professional purposes, transmitting improper material or material that is of no interest to the employer.
Based on the above presumption, the employer, having informed the employees clearly and expressly that they are prohibited from using the corporate electronic mail or even the company's computer, during or outside working hours, for their own personal ends, may monitor such use, if it so wishes.
As regards labour law, the provisions of article 5, items X and XII, of the Federal Constitution (CRFB/1988) are categorical in protecting the inviolability of intimacy, privacy, honour, image , secrecy of correspondence and telegraphic communications, data and telephone communications.
The violation of these constitutional provisions generates an undoubted right to compensation for pecuniary or moral damage on the part of the injured party.
The matter is highly controversial. However, the view that currently prevails in the Labour Courts is that the corporate email has the juridical nature equivalent to that of a work tool provided by the employer to the employee for the purpose of carrying out his work. Thus, the exercise of the employer's right of ownership that in the final analysis involves its liability to third parties authorizes it to monitor and track the employee's activities in the workplace as regards the use of corporate email, checking both from the formal and the material angle the content of electronic messages.
As regards this interim period, provided the employer gives prior notice that only work-related messages may be sent via its email, in our opinion there will be no violation of the employee's privacy.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.